Court File and Parties

Court File Information No.: 2290

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Brandon Weston

Before: Justice John Kukurin

Heard on: December 4, 5 & 7, 2012

Reasons for Judgment released: December 28, 2012

Counsel:

• Michael Varpio, for the Crown
• Kenneth Walker, for the accused

Reasons for Judgment

KUKURIN J.

Introduction

[1] These are Reasons for my decision on the second of two charges against the accused:

(a) Dangerous operation of motor vehicle (section 249(1) CCC);

(b) Carrying a concealed weapon (section 90(1) CCC).

[2] The facts underlying these two charges were presented through the evidence of a number of witnesses; several for the Crown, several for the defence. Not surprisingly, there were some commonalities in the narratives recounted by these witnesses. However, there were disparities as well, some of which were quite significant.

Factual Background

[3] The accused, age 21, is the owner of a red Chevrolet Impala. He was the sole driver of this vehicle during the period of time when these two offences were alleged to have been committed. This time period was the late evening hours of Friday, July 22, 2011, extending past midnight.

[4] A number of teens and/or young adults were having a bush party, complete with booze and bonfire, at a cul-de-sac of a roadway (Yates Street) in the west end of the city. The numbers swelled to anywhere from twenty to fifty persons. A number of vehicles were parked on the sides of the roadway, including in the cul-de-sac circle. Most of the partygoers were drinking, and beer was the beverage of choice.

[5] The accused arrived in his car, a red Impala, with three other occupants. His front-seat passenger was a friend with whom he had been spending some time earlier. The two rear-seat occupants were acquaintances to whom he had offered a ride when he learned that they wished to go to the bush party location. The vehicle arrived sometime after 11 p.m.

[6] For reasons no witness could explain satisfactorily, some of the persons already at the cul-de-sac took exception to the arrival of the accused. Derogatory name calling ensued, possibly mutual, with some degree of yelling. At some point, beer bottles were thrown towards the accused and his vehicle, and some of these broke. According to some witnesses, one or more bottles struck his vehicle.

The Bear Spray Incident

[7] The main factual event relevant to the charge under section 90(1) was the spraying of some persons at this bush party with mace or bear spray. That this took place is not disputed. One witness described a visible cloud of an orange substance in the air. There was some description of the noxious effect this substance caused to other witnesses. One witness said that she "felt it" and that she "couldn't breathe", that she "had to get away". Not unexpectedly, the fact of the bear spraying spread throughout the crowd. Many ran off towards the surrounding bush. One person got into his own vehicle to leave the cul-de-sac area, and collided with the red Impala as he was doing so. He continued to drive off. The red Impala, driven by the accused with his front seat passenger beside him, also left, apparently in pursuit. Some time and some distance later, the red Impala lost control, went into a ditch and collided with a culvert. When police arrived at the location of the crash, two cans of "bear mace" were located on the passenger's side floor of the red Impala. One (Exhibit 9) was a canister with a black fabric cover. The other (Exhibit 10) was a canister red in colour, labelled "Spike Professional Bear Deterrent." A laboratory report (Exhibit 11) describes the items in these canisters as being "pepper spray". There was no dispute about what the contents were, or that some of the contents had been sprayed at persons at the location of the bush party.

[8] What was disputed by the accused was any prior knowledge that these canisters were in his vehicle, or that he was the person who was doing the spraying. In fact, he was quite definite in his testimony that it was his front seat passenger who had done the spraying.

Witness Evidence on the Spraying

[9] The evidence of who had done the spraying at the bush party location was far from ideal. Three witnesses for the Crown testified about the spraying incident. One witness had known the accused from elementary school days, and was acquainted with his front seat passenger, but could not say who was doing the spraying. Another witness saw one person standing in the headlights of the red Impala. She saw a man, with one arm extended, with a bottle in his hand. Although this witness was only 15 to 20 feet away from this man, she could not see this man's face.

[10] The best witness for the Crown was a 19 year old part-time student who had not, prior to that evening, ever spoken to the accused. However, he had seen him around previously between five and ten times, and knew who the accused was. That he did know who the accused was is confirmed somewhat by evidence of an encounter that he and the accused had at a local mall not very long prior to this trial, a not very friendly encounter from which it was clear that the witness knew the accused to be the same man he identified as having sprayed persons at the bush party.

[11] This witness claims that he:

• saw the accused go to his car, pull out the "mace", although he is not sure from where in the car he got it;
• saw the accused walk from his car with the spray container behind his back, towards the crowd;
• saw the accused pull out the can and start spraying people;
• saw the accused in the headlights of his car when the accused was spraying;
• was positive that it was the accused whom he saw doing the spraying; and
• also saw another person spraying people in the circle.

[12] The testimony of this Crown witness, however, had some drawbacks. The most blatant was his own admission that he had brought a mickey of alcohol to the bush party which he had mostly consumed. He admitted that he got drunk that night. He claims he had arrived between 10:30 and 11 p.m. Based on a police witness, the spraying incident was likely closer to 11:45 p.m.

[13] This is not all. The evidence establishes that there were no street lights at the cul-de-sac area or on the immediate part of the (Yates Street) roadway approaching this area. The person (or persons) spraying was (or were) directly in front of the red Impala which had its headlights on. This appeared to be the only lighting that provided any illumination, clearly not the best conditions for making observations of identity.

Defence Witness Evidence

[14] Among the witnesses for the accused was one of the accused's two rear seat passengers whom he had transported to the bush party location. This witness had exited the red Impala, had spoken briefly to the accused through the driver's side window, and was standing not far from this vehicle when the name calling and the spraying took place.

[15] This witness had not, according to his testimony, consumed any alcohol at this point. He described his observation that it was the accused's front seat passenger who had done the spraying, and not the accused. He stated that he was pretty positive about this, but could not be picture perfect about what happened.

[16] This witness's testimony provided some additional detail of the spraying incident. He indicated that the front seat passenger had taken seven or eight good steps towards the circle, and was standing in front of the red Impala when he sprayed the partygoers. He also described a big cloud that became visible when the spraying took place. He opined or estimated, that had the accused sprayed from the position the accused was in, he could not have sprayed far enough for the spray to reach the crowd.

[17] There is a clear discrepancy in the accounts of these two witnesses as to whether the accused actually sprayed anyone with anything. Both witnesses, however, confirmed that the accused's front seat passenger (one Brandon Tustin) did, in fact, spray others with the bear spray.

The Section 90(1) Charge

[18] The accused is not charged with any offence of assault, however. He is charged with an offence under section 90(1) of carrying a weapon concealed. In that regard, a part of the testimony of his witness is quite relevant. This witness, whom he had transported to the bush party location, who had sat in the back seat of the accused's vehicle, who had spoken to the accused through the driver's side window (which presumably was open at the time), testified that he didn't know there was 'mace' in the car.

[19] Not one of the four occupants in the accused's red Impala said anything about the location of the canisters in this vehicle. Two, including the front seat passenger, who, based on the evidence that was presented, would certainly have known where these were located, did not testify at all. The accused's only testimony on this point was that he did not have bear mace and that he did not know that there was bear mace in his car.

Legal Analysis: The Offence Under Section 90(1)

The Statutory Provision

[20] The offence under section 90(1) is often referred to in abbreviated form as "carrying a concealed weapon". This is not a long subsection but nevertheless deserves a closer scrutiny.

S. 90(1) Every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed.

Elements of the Offence

[21] There are several elements that are required to be present to support this charge. There must be a "weapon". It must be "carried" by the accused. It must also be "concealed".

Element 1: Is Bear Spray a "Weapon"?

[22] The Crown simply alleged that the canisters and their contents constituted a weapon for purposes of section 90(1). The accused, through his counsel, not only did not dispute this, but also conceded that there was no issue that the 'mace' was a weapon. Simply because two persons, even (or especially) if they are lawyers, agree on something, that does not necessarily render what they agree upon to be true.

[23] Some objects by their very nature can be assumed to be weapons, for example, brass knuckles. For many items which can be weapons, such assumptions cannot be made. A kitchen knife, for example, could be a weapon if used to intimidate or to cut someone in the course of a robbery or an assault. However, it may also have a benign, utilitarian and socially acceptable use such as trimming fat off the pork chop, in which circumstances, it is not a weapon.

[24] "Weapon" is defined in section 2 of the Criminal Code and this definition applies to section 90(1) offences.

[25] Bear deterrent spray has an obvious use that is recognized as being legitimate. It, however, can be a weapon if it falls under the definition "weapon" in the Criminal Code. I am satisfied that in the circumstances of this case, the canisters and their contents were, in fact, a weapon. They were clearly used, and intended to be used, for the purpose of threatening or intimidating other persons.

Prohibited Weapons Regulation

[26] Section 90(1) falls within Part III of the Criminal Code which is entitled "Firearms and Other Weapons". Section 84, the definition section for Part III, contains definitions for "prohibited device", "prohibited ammunition", "prohibited firearm", and "prohibited weapon". A prohibited weapon means, among other things, any weapon, other than a firearm that is prescribed to be a prohibited weapon. How these are prescribed is "by the regulations". There is a lengthy regulation prescribing various things as prohibited or restricted. The portion of this regulation relevant to the present case is the prescription provision that refers to Part 3 of the schedule to this regulation. Part 3 of the schedule provides that the following are "prohibited weapons":

1. Any device designed to be used for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge therefrom of

(a) tear gas, Mace or other gas; or

(b) any liquid, spray, powder or other substance that is capable of injuring, immobilizing or otherwise incapacitating any person.

[27] Accordingly, and despite the somewhat tortuous and convoluted path the Criminal Code sometimes provides for the assistance of Canadians, I conclude that the spray in the canisters and the canisters themselves fit not only within the Criminal Code meaning of "weapon" (by virtue of the definition of weapon in section 2), but also fit within the definition of "prohibited weapon" (by virtue of the prescription of these items by order of our Governor in Council in the applicable regulation). It would be very difficult intellectually to conclude that what is clearly a prohibited weapon is not a weapon.

[28] So counsel were right. My problem was that I did not know why they were right. Now I do. I now also know that the canisters and their contents are "prohibited weapons" which fact may have some impact on this case.

Element 2: Was the Weapon "Carried"?

[29] The second requirement of an offence under section 90(1) is that the weapon be carried. The wording is "Every person ... who carries ...". "Carries" has no Criminal Code definition. However, and not surprisingly, it has been the subject of judicial consideration in other cases dealing not only with "carrying concealed weapons" charges but also with other charges where "carrying" is one of the relevant elements.

[30] "Carry" has a multitude of dictionary definitions. In the context of the concealed weapons prohibition in s.90(1), the clearest demonstration of carrying would unquestionably be having such weapon in one's hand. Close to this is having such weapon somewhere on one's person, perhaps in a holster, or in a sheath or scabbard, or tucked away in, or tied to, some other article of clothing, or simply up one's sleeve.

[31] While these may be what is thought of classically as methods of 'carrying' concealed weapons, these do not, and should not, exhaust what is meant by the verb 'to carry' in relation to such weapons.

Carrying in a Vehicle

[32] Our law has long recognized that a weapon concealed can be carried by a person, even though it is neither on his or her person, nor in or attached to an item of apparel or a clothing accessory. As early as 1970, it was judicially felt that "carry" or "carries", as used in the Criminal Code should not be restricted by unwritten phrases such as "upon his person" or "about his person". Our Ontario Court of Appeal echoed this sentiment a decade later.

[33] In the present case, the crown asks this court to believe that the accused had a canister of bear spray in his hand, which he had retrieved from his car and had hidden behind his back as he took several steps to approach the persons he meant to spray. If I believed this evidence, I would surely conclude that he 'carried' this canister. However, I am equally comfortable with the conclusion that he 'carried' this canister simply by having this canister in his car transporting it from place to place. It was the accused who was the owner of red Impala vehicle, the proud owner, in fact. That it was his pride and joy came through loudly and clearly in his testimony. It was he who had care and control of this motor vehicle, and it was he who was the driver at all relevant times.

Authorization Defence

[34] Carrying a weapon is an offence under s.90 only if it is carried concealed, and if the person carrying it does not have an authorization to carry it concealed under the Firearms Act. If the accused, in this case, had such authorization, he provided no evidence of it. The onus of showing the existence of such authorization falls on an accused charged under s. 90.

Element 3: Was the Weapon "Concealed"?

The Meaning of "Concealed"

[35] "Concealed" is not statutorily defined in the Criminal Code. It is a word, the meaning of which has been considered judicially more than once. Superficially, the word "concealed" appear to be an adjective. In fact it is often used as a descriptor for a noun as in 'concealed weapon'. Despite the commonplace acceptance of the phrase 'carrying a concealed weapon' as the offence charged under s.90(1), the word "concealed" as used (in both places) in that subsection is not as an adjective but as an adverb. In order to do so, the legislative draughtspersons produced a subsection that is grammatically awkward to read.

[36] Is this of any significance? I believe it is. The intent of the prohibition in this subsection is the act of carrying in a concealed manner, any of the things specified therein.

Societal Context and Mens Rea

[37] The act of carrying an object that is a 'weapon' can be quite neutral from a societal point of view. In fact, it can be socially acceptable, even socially desirable. Conversely, it can, in some circumstances, be so contrary to societal norms as to cause society to criminalize such 'carrying'. Clearly, the circumstances in which such 'carrying' takes place is important in the analysis of whether the 'carrying' should be approved, tolerated or forbidden. The main determinant for purposes of s.90(1) is whether the carrying is concealed.

[38] This criterion necessarily draws in the mens rea, or the requisite mental element. The leading authority on this issue is the 1993 decision of the Supreme Court of Canada:

In summary then, the requisite mens rea or mental element of s. 89 will be established if the Crown proves beyond a reasonable doubt that the accused concealed an object that he knew to be a weapon. In order to prove concealment it would have to be established that the accused took steps to hide the weapon so that it would not be observed or come to the notice of others.

Concealment for Unlawful Purpose

[39] This comment has proven to be problematic for trial courts. When an object can be a weapon or be a non-weapon, depending on the circumstances, the intended purpose of the object becomes very relevant, as does the intent behind its concealment.

[40] The issue of concealment for an unlawful purpose has been recognized as being difficult for courts to grapple with. In cases where an object is not definitively a weapon by its very nature, the issue of whether such object is a "weapon" and whether it was "concealed" are related issues for the court. How is the court to determine what is in the mind of the accused in carrying an object that may be a weapon, and in carrying it concealed?

[41] This brings the court back to the evidence in the case in which concealment is an issue. The approach to such evidence has been set out aptly, if not happily, by Sandhu J in R. v. Bear.

Application to the Facts

Totality of Circumstances

[42] The totality of the circumstances in the present case support the conclusion that the canisters and their contents were weapons and that they were concealed.

Possession and Control

[43] Firstly, it is an almost inescapable inference that the canisters were in the red Impala vehicle owned by the accused who was the person who had care and control, and operated it exclusively on the night in question. The evidence of at least one, and possibly two witnesses, indicates that at least one of the canisters was retrieved from this vehicle just before the spraying took place. Moreover, it could only have been the accused and/or his front seat passenger who took it, or them, out the car before the spray was discharged, and who returned one or both to the car afterwards. Both canisters were located by police on the floor of the front passenger seat after this vehicle ran into the ditch some time later.

Concealment in the Vehicle

[44] Secondly, the presence of the canisters in the red Impala was not known to the rear seat occupant who had been given a ride to the bush party and who attested to this at trial. My inference from his ignorance of the canisters being in the vehicle is that they were concealed in the passenger compartment of the vehicle. There was no evidence that the trunk of the vehicle was ever opened. Photos of the vehicle show that it was a conventional passenger car with a capacity for at most five occupants. Two canisters, one of which was a distinctive red colour could hardly have been overlooked by this passenger unless they were concealed in some fashion. Somewhat ironically, the accused testified that he did not know that these were in his car, a statement which, had I believed it, would have supported the inference that the canisters were concealed while in the vehicle.

Lack of Legitimate Purpose

[45] The totality of the circumstances also draw in other considerations. The most obvious is the nature of the "weapon". In this case, it consisted of pepper spray in pressurized containers. The socially acceptable use for such materials is for protection against attacks from bears. In fact, one of the canisters was prominently labelled "Spike Professional Bear Repellant".

[46] It may be reasonable for certain persons to carry such material in certain environments and at times when there is a danger of an attack by bears or other animals. These were not the circumstances prevailing on the evening of the bush party. It was almost midnight. It was on a travelled roadway within a city. Anywhere up to fifty people were present. A bonfire had been burning. I cannot envision any legitimate reason why these pepper spray canisters were in the red Impala vehicle at the place and time in question. That they were present is undisputed. The accused testified but gave no explanation why they were present. His explanation that he did not know, at the time, that they were in his car does not ring true having regard to all of the circumstances. I don't believe this statement by him. Even if true, by the time of trial, he should certainly have been able to determine how these came to be in his car. He proffered no explanation.

Prohibited Weapon Status

[47] A further circumstance is that these items were weapons, not only because they were in this case intended to be used, and were used, to intimidate others, but more so because they were prescribed by regulation to be weapons that are prohibited to be carried without lawful authorization. It is no secret that some items can be possessed legally only with the proper licence to do so. Prohibited weapons fall within this category of materials. A spray capable of injuring, immobilizing or otherwise incapacitating any person is, by regulation, a prohibited weapon.

Continuity of Possession

[48] My inference is that the accused knew this and knew that these canisters should not have been in his vehicle. That he had them in his vehicle concealed is a reasonable expectation. He cannot have been unaware that these canisters remained in his vehicle when he left the cul de sac area. He did nothing to get rid of them. This supports a belief in the continuity of his possession of these, both before and after the spraying, whether he himself did the actual spraying or not.

Conclusion

[49] For the foregoing reasons, I am satisfied that the offence charged under s.90(1) has been proved beyond a reasonable doubt and the accused should be found guilty.

Released: December 28, 2012

Signed: Justice John Kukurin